Explanatory Memorandum(Circulated by authority of the Treasurer, the Hon Peter Costello, MP)
The Jurisdiction of Courts Legislation Amendment Bill contains amendments to a number of Commonwealth Acts. The amendments:
- deal with some of the consequences of the High Courts decision in Re Wakim; ex parte McNally HCA 27;
- make provision with respect to the review of decisions in the criminal justice process;
- amend the Australian Securities and Investments Commission Act 1989 (ASIC Act) and the Corporations Act 1989 to deal with the combined effect of the decision in Re Wakim and the Corporate Law Economic Reform Program Act 1999 (the CLERP Act); and
- amend the Director of Public Prosecutions Act 1983 to deal with consequences of the High Courts decision in Bond v the Queen .
In Re Wakim , the Court decided that Chapter III of the Constitution precludes the conferral of State jurisdiction on federal courts. Schedule 1 to the Bill repeals invalid provisions of Commonwealth laws that purport to consent to the conferral of State jurisdiction on federal courts.
Schedule 1 also confers federal jurisdiction on federal courts to review the decisions of Commonwealth officers and bodies made in the performance of functions conferred on them by specified State and Territory laws. Until Re Wakim , federal courts exercised State jurisdiction to review such decisions. Re Wakim invalidated the conferral of that State jurisdiction. Re Wakim has no effect on the conferral by Territories of jurisdiction on federal courts. However, for the purpose of achieving uniform coverage of decisions of Commonwealth officers under State and Territory law, the Bill treats the Territories like States. The Bill will also enable the Supreme Court of a State or Territory to exercise federal judicial review jurisdiction in limited circumstances, where related proceedings are before a court of the State or Territory.
Schedule 2 contains amendments to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), the Corporations Act 1989 (Corporations Act) and the Judiciary Act 1903 (Judiciary Act) that restrict the access of defendants in criminal matters to administrative law remedies.
Schedule 3 amends the Australian Securities and Investments Commissions Act 1989 (ASIC Act) toreconfer upon the Federal Court jurisdiction to deal with actions for misleading or deceptive conduct in relation to dealings in securities of the kind lost due to the combined effect of the decision in Re Wakim and the Corporate Law Economic Reform Program Act 1999 (the CLERP Act).
Schedule 4 limits the availability of judicial review in courts exercising federal jurisdiction of decisions of the Corporations and Securities Panel relating to takeovers until after the takeover period.
Schedule 5 amends the Director of Public Prosecutions Act 1983 to authorise the Director or a member of his staff to exercise rights of appeal conferred under State or Territory law in relation to prosecutions for State or Territory offences, confirm the Directors rights of appeal in relation to proceedings for summary conviction in respect of Commonwealth offences, and confirm the Directors authority to carry on or respond to appeals instituted by others in relation to such proceedings.
The measures in this Bill have no financial impact.